Should the Patriot Act Be Renewed?

This is a partial transcript of "The Big Story With John Gibson," April 5, 2005, that has been edited for clarity.


ALBERTO GONZALES, ATTORNEY GENERAL: Al Qaeda (search) and other terrorist groups still pose a grave threat to the American people. And now is not the time to relinquish some of our most effective tools in this fight.


JOHN GIBSON, HOST: The clock is ticking for some key parts of the Patriot Act (search), some of the sweeping and controversial anti-terror laws put into effect after 9/11, which is now set to expire at the end of the year. The Justice Department calls the Patriot Act an invaluable tool in the War on Terror. Critics say the laws are too broad, too intrusive.

So should the Patriot Act be renewed? FOX News senior judicial analyst, Judge Andrew Napolitano, is here for our periodic debates on the worth and efficacy of the Patriot Act.

So I'm sitting here saying, well, I don't know about you, but I haven't seen any terror attacks here. It must be working well. Why change it?

JUDGE ANDREW NAPOLITANO, FOX NEWS SR. JUDICIAL ANALYST: Right. It's funny because when Attorney General John Ashcroft appeared before the House Judiciary Committee and the Senate Judiciary Committee, he wouldn't take any questions, but he did make a statement. He said we need the Patriot Act to prosecute terrorists. And Attorney General Alberto Gonzales said the same thing today.

Guess how many prosecutions of terrorists there have been under the Patriot Act since 9/11? Zero. Not a single one. The government has used these powers for other things, other crimes — prostitution, pornography, political corruption in Las Vegas.

GIBSON: They tracked that woman down who murdered a woman and stole the baby from her womb.

NAPOLITANO: Correct. They have tracked down awful criminals. But they have not used it as they said they needed — to prosecute terrorists.

GIBSON: Right. We didn't find WMD (search) either. You know, the fact is, are you telling me that they're not using provisions in the Patriot Act to head off terrorism before it occurs and then it becomes prosecutable?

NAPOLITANO: That we don't know. That's like saying the dog didn't bark in the middle of the night. Why didn't it bark?

We don't know what they're not using it for. We only know that they haven't had any successful prosecutions of terrorists because they've chose to use it for other areas.

GIBSON: But is that any way to judge it? I mean, if they are going into people's houses — there's this one provision which they're allowed a sneak and peek — looking through records, putting a little chip on their computer, watch every keystroke, all of that stuff. If they're doing that to somebody they really suspect of being a terrorist and nothing ever happens, then take that person. He's gone, put away, or just neutralize him somehow. Isn't that a win?

NAPOLITANO: Well, we don't know, because we don't know if the person whose home was invaded by the FBI pursuant to a self-written search warrant stops speaking because they knew the bug was there, or just their behavior didn't rise to a criminal level.

Look, there are three or four serious problems with the Patriot Act, none of which are subject to the sunset clauses: the sneak and peek, which allows agents to break into a house and make it look like a burglary; the self-written search warrant aspect, which allows agents to write their own search warrants, even the Constitution says only judges can issue search warrants; and the "thou shalt not speak" aspect, which says if you are the subject of a search warrant, you can't tell anyone about it — you can't tell Gibson, Napolitano, your spouse, or your lawyer about it. Those are direct violations of the Constitution. They are not subject to the sunset clauses and probably won't even be debated by the Congress.

GIBSON: But Judge Napolitano, your eminence, you're not on the Supreme Court yet. Have the Supreme Court justices ruled that those are unconstitutional?

NAPOLITANO: No. The only time that the Patriot Act has been challenged in court, all three times it's been ruled unconstitutional by federal trial judges.

The "thou shalt not speak" was found unconstitutional. The self- written search warrant was found unconstitutional.

And an interesting provision, John, that makes it a crime to provide material assistance to someone the government calls a terrorist is unconstitutional because a lawyer for someone called the terrorist, but not yet convicted, said, "Judge, am I going to be prosecuted for defending this guy?" And the judge said, "I'm going to declare that part of it unconstitutional."

So three of the most offensive parts have been declared unconstitutional by the only federal judges to review it. It will make its way to the Supreme Court.

GIBSON: It will make its way to the Supreme Court. And then we will find out for sure whether they are unconstitutional or not.

NAPOLITANO: In the meantime, Congress is going to debate these clauses, these parts of the sunset. Remember, there was no debate on the Patriot Act three years ago. Congress passed it without debate. If they debate it this time, it will be the first time they're talking about it in public.

GIBSON: All right. Well, I want to see that debate. Judge Andrew Napolitano, as always, the judge rules. Thanks, Judge.

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